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Taking Judicial Activism Seriously

Appeared in the Winnipeg Free Press, August 21, 2003
Release Date: August 21, 2003
Speaking at a recent Canadian Bar Association conference, Supreme Court Justice Beverley McLachlin repeated her plea to the federal government to keep partisan politics out of any future changes it may be planning to its method of appointing Supreme Court judges.

Such “partisan” changes might presumably include a move toward open confirmation hearings in Parliament, along the lines suggested by Liberal MP Paul Martin, or a move toward a limited petition system with final selection by the full House and Senate (as I have recommended in a recent Fraser Institute paper).

The Chief Justice is entitled to her point of view. But her point of view is itself partisan: It is an overt political endorsement of the opaque system of judicial appointments to the nation’s top court, in which the Prime Minister selects a candidate from a short list provided to him by the Minister of Justice.

The current method of appointments is already political. Regional representation and linguistic considerations have always been considered. Lobby groups vie behind closed doors for certain candidates. And the legal community tends to elevate to prominence lower-court judges and lawyers and academics who champion an expansive interpretation of the Charter of Rights and Freedoms (especially the equality-rights provisions).

At the end of the day, only a small subset of Canadians who subscribe to a highly limited worldview ever find themselves eligible for consideration as Supreme Court judges. This would be less of a concern if we did not live in a country where Parliament was broken, and where federal politicians increasingly defer to the courts when legislating in sensitive areas of social and economic policy. But we do live in such a country.

From 1994 (the first full year of Liberal rule under the current prime minister) until the end of 2002, the government had shut off or limited House of Commons debates 80 times. Meanwhile, activism at the Supreme Court has accelerated: The success rate for Charter of Rights claimants was 63% in 2002, the highest rate in the previous 10 years.

The democracy gap at the Supreme Court starts with the Prime Minister, who has handpicked six of the nine justices of the top court, and has elevated to Chief Justice someone who — unlike the vast majority of Canadians — wants the judicial selection process to remain as is.

The Supreme Court influences public policy most directly in two ways: by choosing which cases to hear (thereby setting policy priorities), and by striking down or recrafting government laws, policies, and actions. Last year, the Supreme Court heard only about 10 per cent of the appeal applications it considered. And when the Court did decide to hear a Charter case, it tended to side against the government and with the individual asserting the claim.

In the last several years, the Supreme Court of Canada has increasingly embraced the “contextual approach” to statutory interpretation — which counsels that laws and regulations be interpreted flexibly, with due to regard to “diversity” and perceived social context. More than one quarter of such cases have been decided in just the last three years.

Even if it does ultimately side with the government on legislative interpretation, the Supreme Court can lay the groundwork for future activism by using “social context” to breathe life into radical ideas that were never approved by legislatures, that were deliberately omitted from the Charter, and that were voted against at the ballot box.

A case in point is the 2002 case of Gosselin v. Quebec, where the Supreme Court split 5-4 on the question of whether Quebec’s welfare policies, which tied welfare payments to participation in work programs, ran afoul of the Charter’s equality guarantees. Welfare activists can now hang their hat on the strong dissenting opinions in this case. It is also worth noting that one of the judges in the narrow majority opinion was Justice Charles Gonthier, whose recent retirement may now tip the scale toward greater welfare-rights activism.

For some, this increasing judicial creativity is cause for celebration, not concern. After all, isn’t it the Court’s role, they say, to scrutinize executive action, and to advise against laws that are injurious in their purpose or effects? This judicial responsibility is key to the rule of law; it is enshrined in the constitution itself, which grants individuals the right “to obtain such remedy as the court considers appropriate and just in the circumstances.”

The real problem, therefore, is not with judicial activism, but with the lack of any accountability for that activism. This is especially problematic in the case of activism that advances “positive liberty,” whereby Charter claimants are rewarded with new, positive rights that carry heavy demands on the public purse in terms of compliance costs, that expand the role of the state, that treat racial or gender groups differently, or that create new categories of “discrimination” beyond those which were deliberately ordained by Parliament.

Greater accountability starts with changing the appointments process. It is inevitable that any appointments process will be political (as is the current system), and so the challenge is to make it a more democratic and transparent process. Next comes the need to invite greater resort to the “notwithstanding clause” as a way of tempering judicial excesses. One way to rehabilitate this clause, an idea first suggested by Canadian Alliance MP Scott Reid, is to put its use to a referendum (i.e., at a subsequent provincial or municipal election).

Finally, judges must be held to account for their public statements.

Consider this statement from Supreme Court justice Michel Bastarache: “In general, there isn’t any true evidence that I’ve seen that the public, or even the government, is very preoccupied with the issue of legitimacy of the court.”

Yet many regular Canadians are frustrated at the increasing power of the judiciary — 54%, in the latest Ipsos Reid poll, say judges have too much power; 71% say legislatures, not the courts, should make laws.

The judicial branch is growing stronger relative to other means of shaping the direction of public policy in Canada. To point this out is not to “judge bash,” but to call on judges to defend their activism — and for parliamentarians to defend their inactivism.